Opinion
CASE NO. 99-CV-75379-DT
December 13, 2000.
MEMORANDUM OPINION AND ORDER I. Introduction
Before the Court is Robert Jeffrey Bigelow's habeas corpus petition under 28 U.S.C. § 2254. In June of 1995, a circuit court jury in Genesee County, Michigan convicted Petitioner and his co-defendant, Allen Lambert ("Lambert"), of first-degree premeditated murder, M.C.L.A. § 750.316(1)(a); M.S.A. § 28.548 (1)(a), first-degree felony murder, M.C.L.A. § 750.316 (1)(b); M.S.A. § 28.548(1)(b), and breaking and entering, M.C.L.A. § 750.110; M.S.A. § 28.305. The convictions arose from the murder of 97-year-old Alma Malzahn in her home.
Following the jury trial, Petitioner pleaded guilty to a supplemental information charging him with being a habitual offender, second offense, M.C.L.A. § 769.10; M.S.A. § 28.1084. The trial court sentenced Petitioner to concurrent terms of life imprisonment for the murder convictions and fifteen to twenty-two and one-half years for the breaking and entering conviction.
Petitioner raised his habeas claims in an appeal of right. On September 2, 1997, a three-judge panel of the Michigan Court of Appeals vacated Petitioner's felony murder conviction pursuant to M.C.R. 7.215(H) and People v. Passeno, 195 Mich. App. 91, 95 (1992) (stating that multiple convictions for premeditated murder and felony murder of a single individual violate double jeopardy protections and that the appropriate remedy in such cases is to vacate the felony murder conviction). The panel noted that, if it were permitted to deviate from Passeno, it would hold that Petitioner's judgment of sentence should be modified to specify one count and one sentence of first-degree murder supported by two theories: premeditated murder and felony murder. The Court of Appeals affirmed Petitioner's other convictions. See People v. Bigelow, 225 Mich. App. 806 (1997).
On September 16, 1997, the Court of Appeals vacated its previous opinion and ordered a special panel to convene and resolve the conflict between Petitioner's case and Passeno. See id. On April 10, 1998, a special panel of the Court of Appeals vacated Petitioner's breaking and entering conviction on double jeopardy grounds. The panel also directed the trial court to modify Petitioner's judgment of sentence to specify one conviction of first-degree murder supported by two theories (premeditated murder and felony murder). The panel reinstated the balance of the prior appellate opinion. See People v. Bigelow, 229 Mich. App. 218 (1998). The Michigan Supreme Court subsequently denied leave to appeal because it was "not persuaded that the questions presented should be reviewed. . . ." People v. Bigelow, No. 112497 (Mich.Sup.Ct. Nov. 6, 1998).
On November 5, 1999, Petitioner filed the pending habeas corpus petition through counsel. He alleges insufficient evidence to sustain the murder convictions, ineffective assistance of trial counsel, and prosecutorial misconduct. Respondent urges the Court to deny the petition.
II. Discussion
A. General Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") is applicable here because Petitioner filed his habeas petition after the AEDPA was enacted on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1523 (2000). Federal courts may grant the writ of habeas corpus only if the state court's adjudication of the petitioner's claim on the merits —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d)(1) and (2).
Under the `contrary to' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 120 S.Ct. at 1523. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1521.
B. Sufficiency of the Evidence
Petitioner's first claim is that his premeditated and felony murder convictions must be vacated because the evidence presented at trial was not sufficient to sustain either verdict. The Supreme Court has held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). After Winship, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is
whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307. 318-19 (1979) (internal citation and footnote omitted) (emphasis in original). Moreover, federal habeas courts must give deferential review to state court decisions on sufficiency-of-the-evidence claims. Gomez v. Acevedo, 106 F.3d 192, 193-94 (5th Cir.), vacated on other grounds, 522 U.S. 801 (1997).
1. Premeditated Murder
According to Petitioner, there was no evidence that he caused the decedent's death, that he premeditated and deliberated the killing, or that he aided and abetted Lambert in the murder. At most, alleges Petitioner, he entered Alma Malzahn's house to commit a burglary and then inflicted superficial wounds to persuade the victim to disclose the location of her valuables.
a. The Elements
The Jackson "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n. 16. Jurors in Michigan "can convict [a defendant] of murder only when they are convinced beyond a reasonable doubt that (1) the defendant intended (actually or impliedly) to kill and (2) circumstances of justification, excuse or mitigation do not exist." People v. Morrin, 31 Mich. App. 301, 323 (1971) (emphasis in original). First-degree premeditated murder requires a finding that the defendant committed a homicide with premeditation and deliberation. Id. at 328. "To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem." Id. at 329. "While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a `second look.'" Id. at 330.
b. Aiding and Abetting
One who procures, counsels, aids, or abets the commission of an offense may be convicted and punished as if he directly committed the offense. MICH. COMP. LAWS ANN. § 767.39; M.S.A. § 28.979. As the Michigan Court of Appeals explained in this case,
[t]o establish that [a] defendant aided and abetted a crime, the prosecutor must establish that (1) either [the] defendant or another committed the charged crime, (2) the defendant performed acts or encouraged or assisted the principal in committing the crime, and (3) the defendant intended the commission of the crime or knew the principal intended its commission at the time he gave aid and encouragement. Turner, [ 213 Mich. App. 558, 568, 540 N.W.2d 728 (1995)]; People v. Jones (On Rehearing), 201 Mich. App. 449, 451, 506 N.W.2d 542 (1993). An aider and abettor's state of mind may be inferred from all the facts and circumstances. Turner, supra at 567, 540 N.W.2d 728.Bigelow, 225 Mich. App. at 808.
c. The Facts
Petitioner told his sister, Catherine Skwirsk, that he and Lambert killed a woman for her money. After Petitioner stated that he had killed a woman, Skwirsk said, "No, you didn't," and Petitioner responded, "Yes, I did" T III at 11-20.
"T" refers to the transcript of Petitioner's trial, which consists of volumes I-VI.
Petitioner told his former girlfriend, Elise Ballance, that he and Lambert broke into a house. While they were there, the woman woke up, and Lambert stabbed her in the neck with an ink pen while he (Petitioner) hid behind a chair. They took jewelry and cassette tapes and then left. Id. at 24-35.
Petitioner informed a second sister, Patricia Simmons, that he and Lambert walked down to the woman's house and removed a screen. Lambert entered the house first. By the time Petitioner entered, Lambert was holding the woman. Lambert said to Petitioner, "Get something. She's gonna talk." Petitioner responded, "No, I can't," but eventually he looked around and picked up a small letter opener. Lambert then said, "Do her, Bob. She's gonna talk." Petitioner stated a couple of times that he could not do it. So Lambert took the letter opener from Petitioner and repeatedly stabbed the woman. As Petitioner removed $500.00 from a purse and looked for other things of value, Lambert threw the woman down. He thought that she hit her head on the bed. Then Petitioner said, "Let's get out of here" and they left with money, shoes, and jewelry. He passed out after he got home. When he woke up, he was covered with blood. There was blood on his clothes, hands, and under his fingernails. He burned his clothes and told his sister that he intended to kill Lisa and Lambert so that they would not talk and he would never be caught. Id. at 107-22.
Pathologist Willys Mueller testified that the decedent was 5'1" and 80 to 85 pounds when she died. An external examination revealed two stab wounds from a knife and three puncture wounds caused by a round object. There were fingernail scratches on the decedent's lower neck, incised wounds on her shoulder, and abrasions due to blunt trauma on her face. The cause of death was manual strangulation with extensive hemorrhage in the neck and a fracture at the base of the neck which injured the spinal cord. Although the victim bled internally, the bleeding was venous and there was no pulsating squirt of blood. Consequently, the perpetrator would have had to be very close to the victim if he had blood on him. Id. at 60-89.
d. Analysis
To summarize, Petitioner informed his sister that he had killed a woman. His account of the incident indicated that he provided Lambert with a letter opener, knowing that Lambert wanted the victim to be silenced. Petitioner also expressed a consciousness of guilt after the homicide, and he admitted that he had been covered with blood. The pathologist opined that the perpetrator must have been very close to the victim in order to be covered with blood.
A rational juror could have inferred from the evidence that Petitioner and Lambert acted in concert during the murder. The evidence could be construed to indicate that Petitioner directly participated in the murder by strangling the victim while Lambert held her or that he assisted Lambert in strangling and stabbing her. He had enough time to think about what he was doing and to consider his choices during his conversation with Lambert in the victim's house.
Th Michigan Court of Appeals held that there was sufficient evidence for a reasonable juror to conclude that Petitioner committed first-degree premeditated murder or assisted Lambert in committing premeditated murder. Although the Court of Appeals did not cite Jackson in its opinion, it applied the same standard. This Court concludes from the evidence against Petitioner that the state appellate court's decision was objectively reasonable. Accordingly, Petitioner has no right to habeas relief on the basis of his challenge to his premeditated murder conviction. 28 U.S.C. § 2254 (d)(1).
2. Felony Murder
Petitioner alleges that there was no evidence that he possessed the necessary intent for felony murder. At most, argues Petitioner, he inflicted superficial stab wounds and any conduct construed as evidence of intent to cause great bodily harm was unrelated to the independent acts of Lambert, who caused the death.
a. The Elements
The elements of felony murder are: "(1) [t]he killing of a human being (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in MCL 750.316; MSA 28.548." People v. Thew, 201 Mich. App. 78, 85 (1993). Breaking and entering a dwelling is one of the felonies enumerated in M.C.L.A. § 750.316; M.S.A. § 28.548.
b. The Facts
The evidence, as summarized above, indicates that Petitioner or Lambert or both of them killed Alma Malzahn during a breaking and entering. Lambert expressed an intent to kill or to do great bodily harm when he instructed Petitioner to "get something" and "do her" because "she's gonna talk." The fact that Petitioner picked up a letter opener in response to Lambert's directives plausibly suggests that he shared Lambert's malicious intent. At a minimum, the evidence shows that he aided Lambert with knowledge of Lambert's intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm.
c. Analysis
The Court of Appeals concluded on the basis of Petitioner's involvement in the stabbing that "the jury could reasonably infer that [Petitioner] intended to kill the victim, cause her great bodily harm, or that he wantonly and wilfully disregarded the likelihood of the natural tendency of his behavior to cause death or great bodily harm." Bigelow, 225 Mich. App. at 809. This conclusion was objectively reasonable in light of the evidence. Accordingly, Petitioner has no right to habeas relief on the basis of his challenge to the felony murder conviction. 28 U.S.C. § 2254 (d)(1).
C. Assistance of Counsel
Petitioner's second claim is that he was denied the effective assistance of trial counsel. Petitioner contends that his attorney failed to (1) establish a reasonable defense theory, (2) object to the prosecutor's misstatements, and (3) effectively cross-examine witnesses. Petitioner also contends that his attorney made inconsistent statements to the jury.
To prevail on his claim, Petitioner must demonstrate that
counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed [Petitioner] by the Sixth Amendment. Second, [Petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive [Petitioner] of a fair trial, a trial whose result is reliable. Unless [Petitioner] makes both showings, it cannot be said that the conviction. . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984).
The proper standard for attorney performance is "reasonably effective assistance." Id. Petitioner must demonstrate that his attorney's "representation fell below an objective standard of reasonableness." Id. at 688.
To satisfy the prejudice prong of the standard for ineffective assistance of counsel, Petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
1. Failure to Present a Reasonable Trial Strategy
Petitioner alleges that defense counsel did not articulate a theory on which the jury could find him guilty of breaking and entering, but not murder. According to Petitioner, defense counsel should have asked the jurors whether they could separate the break-in from the homicide and whether they could find Petitioner not responsible for the independent acts of his codefendant. Petitioner contends that, during opening arguments, defense counsel should have articulated the theory that Petitioner did not participate in, and was not criminally responsible for, the homicide. Petitioner believes that, during closing arguments, defense counsel should have articulated how the evidence supported a finding that Petitioner participated in the break-in, but was not criminally responsible for the homicide.
Defense counsel warned prospective jurors during voir dire that the testimony might be so offensive to them that their inclination would be to render a guilty verdict as a way of placing blame for the tragedy on someone. Defense counsel then proceeded to ask the jurors whether: (1) they would convict Petitioner simply because the facts were so bad that somebody had to be found guilty; (2) they would have trouble finding Petitioner not guilty if the prosecutor failed to prove guilt beyond a reasonable doubt; and (3) they believed that Petitioner was guilty simply because he was arrested. See T I at 55-56. Counsel's questions touched on important concepts, which indirectly addressed Petitioner's concerns that the jury carefully consider the facts and not convict him on the basis of his co-defendant's conduct. It was unnecessary for defense counsel to ask additional questions because none of the jurors responded affirmatively to defense counsel's three questions.
During opening statements, defense counsel emphasized that Petitioner was innocent until proven guilty beyond a reasonable doubt and that the death in this case was not intentional or premeditated. Defense counsel argued that the prosecutor would not be able prove that the homicide was committed with malicious intent. Defense counsel asked the jury to consider the roles played by each defendant. He asserted that Petitioner was not guilty of the charged crimes. See T II, Part I at 24-25.
Finally, during closing arguments, defense counsel argued that Petitioner's co-defendant, not Petitioner, caused the victim's death and that Petitioner was merely present. Defense counsel also argued that the prosecutor had failed to prove premeditation and that Petitioner might be guilty of breaking and entering, but not murder. See T V at 29-31.
Defense counsel made some of the same arguments that Petitioner makes in his habeas petition. The Court concludes that defense counsel's performance did not fall below an objective standard of reasonableness.
Petitioner nevertheless contends that defense counsel should have advanced the theory that Lambert's comment "she's gonna talk" meant that the victim intended to reveal where she kept her valuables. This interpretation, however, is not supported by the record. There was no testimony about anything said by the victim. Consequently, defense counsel's performance was not deficient for not having advanced that theory. The more likely and obvious interpretation of Lambert's comment is that he wanted the victim killed to avoid having her identify the two men as the robbers.
Petitioner further alleges that defense counsel should have advanced the argument that Petitioner's comment to his sister about killing someone and being covered with blood was metaphorical and not literal. The jury, however, likely would not have been persuaded by that argument because Petitioner's sisters and girlfriend specifically testified that Petitioner had said the woman was stabbed or killed.
The Court concludes that Petitioner's attorney presented a reasonable defense and that his performance did not fall below an objective standard of competence. Any deficiency in defense counsel's presentation of a defense theory could not have prejudiced the defense.
2. Failure to Object to the Prosecutor's Misstatements
Petitioner alleges next that defense counsel's performance was deficient because he failed to object to the prosecutor's misrepresentations of the testimony and reference to facts not of record. Specifically, Petitioner objects to the prosecutor's argument that the jury could infer premeditation because Petitioner and Lambert had time to talk. This was not a misrepresentation of the evidence. It was a fair argument based on evidence that Lambert tried to induce Petitioner to kill the victim, Petitioner refused, and then Petitioner looked around and picked up a letter opener.
Petitioner also objects to the prosecutor's assertion in his closing argument that Petitioner grabbed the complainant just before she was killed. The prosecutor said, "He grabbed her." It is not clear from the context of the disputed statement whether the prosecutor was referring to Lambert or Petitioner. Even if the prosecutor was referring to Petitioner, the jury could have inferred from the testimony that Petitioner did stab or strangle the victim. He admits that the evidence could be construed to read that he inflicted superficial wounds. Thus, there was no misrepresentation of the evidence, and defense counsel was not ineffective for failing to object to the prosecutor's comment.
The context in which the prosecutor made this statement reads as follows:
And as you deliberate we would hope that you would consider the evidence which has been presented before you in determining the number one charge which is First Degree Premeditated Murder. Was there time to reflect? They stopped. They looked at each other. He grabbed her. They had a conversation. There was plenty of time to think about what was going to happen, plenty of time to reflect.
T V at 25-26.
Petitioner alleges that the prosecutor misrepresented Catherine Skwirsk's testimony. Skwirsk initially testified that Petitioner and Lambert killed the victim. See III at 13-14. The prosecutor subsequently asked Skwirsk whether Petitioner had said he killed a woman. Although the prosecutor asked a leading question to which Skwirsk responded, "Yes," Skwirsk proceeded to explain in her own words that "the conversation was that he had killed a woman." Id. at 14 (emphasis added). Therefore, the prosecutor did not misrepresent Skwirsk's testimony, and defense counsel was not remiss for failing to object to the prosecutor's question.
3. Failure to Effectively Cross-Examine Witnesses
Petitioner alleges that defense counsel should have cross-examined Catherine Skwirsk about inconsistencies in her testimony. As just explained, Skwirsk testified initially that Petitioner and Lambert killed the woman. See id. at 12-13. Subsequently, Skwirsk testified that Petitioner had said he killed the woman. See id. at 14.
Defense counsel could have emphasized the alleged inconsistency in Skwirsk's testimony, but he risked harming the defense more than helping it if he took that approach. Skwirsk might have responded to defense counsel's questions by testifying that Petitioner in fact had said he killed the victim. Defense counsel arguably took a better approach by eliciting testimony that Skwirsk and Petitioner discussed the killing on only one occasion and that the only other source of Skwirsk's information came from Petitioner's girlfriend. See id. at 20-21.
In any event, Petitioner was not prejudiced by the failure to emphasize the inconsistency in Skwirsk's testimony because the inconsistency was obvious from the testimony given on direct examination. After stating on direct examination that Petitioner said he had killed a woman, Skwirsk read from her diary, which quoted Petitioner as saying he, Lambert, and a third person killed a woman for her money. See id. at 17.
Petitioner also asserts that defense counsel should have expanded on Elise Ballance's exculpatory testimony that Petitioner stood behind a chair while Lambert stabbed the victim. Defense counsel's failure to expand on this testimony did not prejudice the defense because Ballance testified more than once on direct examination that Petitioner had said he was behind the chair while Lambert stabbed the woman. See id. at 31, 34.
4. The State Court Decision
The Michigan Court of Appeals stated that appellate review of Petitioner's ineffective-assistance-of-counsel claim was limited to the record because there was no evidentiary hearing in the trial court. The Court of Appeals then analyzed Petitioner's claim on the merits in one sentence, concluding that Petitioner had not (1) demonstrated that defense counsel made a serious error that affected the result of trial, or (2) overcome the presumption that his counsel's actions were strategic. For all the reasons given above, the Court concludes that the state court's decision was objectively reasonable and that Petitioner is not entitled to habeas relief on the basis of his second claim. 28 U.S.C. § 2254 (d)(1).
The record before the Court provides no indication that Petitioner requested an evidentiary hearing. Cf. Barnes v Elo, ___ F.3d ___, No. 99-1784, 2000 WL 1676399 (6th Cir. Nov. 9, 2000) (remanding for an evidentiary hearing on the competency of trial counsel where the petitioner requested, and was denied, an evidentiary hearing in state court). Petitioner is not entitled to an evidentiary hearing in this Court because he is not relying on (1) a new, retroactive rule of constitutional law that previously was unavailable, or (2) a factual predicate that previously could not have been discovered through due diligence. See 28 U.S.C. § 2254 (e)(2)(A). Additionally, no reasonable factfinder would have found him not guilty absent the alleged constitutional errors. See 28 U.S.C. § 2254 (e)(2)(B).
D. The Prosecutor's Conduct
Petitioner's third and final claim is that the prosecutor's conduct at trial deprived him of a fair trial. Petitioner contends that the prosecutor misstated the testimony, argued facts not in evidence, and appealed to the jurors' emotions.
Respondent alleges that Petitioner's state procedural default bars habeas review of his claim.
When a habeas petitioner fails to obtain consideration of a claim by a state court. . . due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review. A petitioner may avoid this procedural default only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case.Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (internal citations omitted); accord Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989). When analyzing a procedurally a defaulted claim, a federal habeas court must consider:
(1) whether there is a procedural rule that is applicable to the petitioner's claim and whether the petitioner failed to follow this rule; (2) whether the state courts actually enforced the state procedural rule; (3) whether the state procedural rule is an adequate and independent state ground to foreclose federal relief, and if so (4) whether the petitioner has established cause for his failure to follow the rule and prejudice by the alleged constitutional error.White v. Schotten, 201 F.3d 743, 749 (6th Cir. 2000), cert. denied sub nom Bagley v. White, ___ U.S. ___, 121 S.Ct. 332 (2000).
The procedural rule in question here is the requirement that a criminal defendant object at trial to improper prosecutorial conduct in order to preserve a prosecutorial misconduct claim for appellate review. See People v. Ullah, 216 Mich. App. 669, 679 (1996) (citing People v. Stanaway, 446 Mich. 643, 687 (1994)). Petitioner admits that he did not object to the prosecutor's misconduct during trial, and the Michigan Court of Appeals relied on Petitioner's omission to preclude full appellate review.
The Court of Appeals stated that "appellate review is precluded unless a curative instruction could not have eliminated the prejudicial effect of the remarks or where a miscarriage of justice would result." Bigelow, 225 Mich. App. at 810.
The contemporaneous-objection rule was firmly established and regularly followed before Petitioner's trial. See, e.g., People v. Buckey, 424 Mich. 1, 17-18 (1985); People v. Sharbnow, 174 Mich. App. 94, 100 (1989). Therefore, the state court's reliance on Petitioner's failure to object to the prosecutor's conduct was an adequate and independent state ground for foreclosing review. Luberda v. Trippett, 211 F.3d 1004, 1006-07 (6th Cir. 2000); Rogers v. Howes, 144 F.3d 990, 994-95 (6th Cir. 1998).
Petitioner's failure to obtain consideration of his claim in state court bars habeas review of his claim unless he can show cause for the default and resulting prejudice or that a miscarriage of justice will result from enforcing the procedural default. Coleman, 501 U.S. at 750; Harris, 489 U.S. at 263; Seymour, 224 F.3d at 549-50. Petitioner alleges that his trial attorney was "cause" for his failure to object to the prosecutor's conduct. In support of this allegation, Petitioner refers the Court to his second claim. The Court, however, concluded in its discussion of Petitioner's second claim that defense counsel's performance was not deficient and did not prejudice the defense. Therefore, ineffective assistance of counsel cannot serve as "cause" for Petitioner's state procedural default in this case. The Court need not determine if Petitioner were prejudiced by the alleged violation of federal law because he has not shown cause for his noncompliance with a state procedural rule. See Smith v. Murray, 477 U.S. 527, 533 (1986).
Furthermore, Petitioner has not shown that failure to consider his claim on the merits will result in a miscarriage of justice. The exception for miscarriages of justice requires showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995); Murray v. Carrier, 477 U.S. 478, 496 (1986). The evidence was sufficient to sustain the verdict, see infra, section II.B., and Petitioner has not "support[ed] his allegations of constitutional error with new reliable evidence. . . that was not presented at trial." Schlup, 513 U.S. at 324. Therefore, his state procedural default bars habeas review of his prosecutorial misconduct claim on the merits. Coleman, 501 U.S. at 750; Harris, 489 U.S. at 263; Seymour, 224 F.3d at 549-50.
III. Conclusion
Petitioner's third claim is barred from habeas review by his state procedural default. His first and second claims lack merit because the state court's adjudication of those claims on the merits was a reasonable application of clearly established federal law as determined by the Supreme Court. Accordingly, the petition for a writ of habeas corpus is DENIED.